Chapter 4: Sources of law (case law) Flashcards
doctrine of judicial precedent
Previous decision that established, developed, modified or clarified the law (legal authorities). Courts must follow this decision.
Stare decisis
stand by what has been said. Previous decisions are followed in subsequent cases with similar facts and legal issues.
ratio decidendi
reason for the decision (statement of law and explanation why they reached a decision)
obiter dicta
other things said (other statements in the judgement- supplementary) NOT BINDING
persuasive precedent
court MAY rely on to reach a decision. Example: different jurisdiction.
4 principles of judicial precedent
Courts are bound by the decisions of superior courts.
Courts are not bound by the decisions of inferior courts.
Some courts may be bound by there own previous decisions (Supreme Court).
Courts BELOW the High Court do not create precedents that bind other courts.
Which courts bind themselves
Supreme Court
court of appeal
high court - appeal court / court of first instance
Which courts cannot set precedent
crown court
courts of first instance
what are the conditions for young v Bristol to apply?
Where there are 2 conflicting decisions (can choose)
Previous decision of C of A has been overturned by SC (follow SC)
Decision is per incuriam (court failed to apply a relevant statutory provision or binding precedent) would have been different has the relevant authority been applied.
Which courts does Young V Bristol apply to?
court of appeal and high courts
when can the criminal devision of the court of appeal also depart from precedent?
where the liberty of an individual is at stake - wider powers
When does the High court not bind itself?
when it is acting supervisory (judicial review)
what is the exception the family court?
different judges - some judges create precedent that lower judges must follow.
what is the relationship of domestic courts and ECHR
all courts must consider decisions - persuasive
what is the relationship of domestic courts and the CJEU
no longer bound after EU withdrawal.
depart when it ‘appears right to do so’.
When must courts consider precedents?
when the material facts are the same or similar to previous cases
what does ‘follow’ mean?
application of binding legal precedent to a case
what does reverse mean?
appeal court consider an appeal
reverse decision where interpretation was incorrect.
new decision becomes precedent
what does overrule mean?
court decides an existing precent is wrong or no longer accurate.
what does distinguish mean?
Material facts are different.
Court not bound by precedent.
Old decision stands but new precedent also made.
